ConCourt dismisses Shembe succession matter

The Constitutional Court has failed to come to the aid of Mduduzi Shembe in his final legal bid to take the reins of the Ebuhleni faction of the Nazareth Baptist (Shembe) church.

The court ruled on Tuesday that it would not grant him leave to appeal an earlier ruling by the Supreme Court of Appeal (SCA) because the issue was “academic”, of no practical effect and had no jurisprudential value.

Writing for the unanimous court, judge Leona Theron said both the trial court and the SCA had ruled, on the facts, that Mduduzi had not been nominated by his late father, Vimbeni, as leader of the church.

Both courts had ruled his uncle Vela Shembe, who has also since died, had been nominated in terms of a written deed of nomination and Mduduzi’s claim of an “oral” nomination was false.

She said while there may still be further litigation on the matter about who should succeed, the apex court would not deal with appeals which involved factual findings.

After the succession bid by Mduduzi, Vela approached the Durban high court for an order that effect be given to the deed of nomination in terms of which he was appointed titular head of the church. 

After hearing oral evidence, including allegations by Mduduzi that the deed of nomination was a forgery, the court ruled in favour of Vela.

This finding was endorsed by the SCA.

In the ConCourt, Mduduzi took issue with what he said was a finding that the Ebuhleni faction was not governed by provisions of a trust deed, established in the 1930s by the founder of the church to administer its assets, but by its own constitution, adopted after a previous split in the church.

The trust deed made provision for the nomination of more than one successor, and for that decision to be made by committee, while the constitution only makes provision for one nominee.

Theron said the SCA had stated “in passing” that some of the provisions of the trust deed would still apply to the Ebuhleni congregation since those were not dealt with in the constitution. But in relating to succession, it had been varied by the constitution.

She said Mduduzi claimed the SCA had “allowed a variation of a trust deed” in breach of the relevant laws.

“The mainstay of their case is that the SCA decision has created precedent that courts have a discretion to vary trust deeds. But the SCA created no such precedent.

“The applicants have always accepted that the question of succession was to be resolved by a factual determination of whether the trust deed or the constitution applies at Ebuhleni. It has always been a factual one.

“Even in the SCA, it was accepted that the matter turned on factual findings which could not be disturbed. The remarks about the variation were simply 'by the way' and not part of the rationale or reason of its judgment.”

TimesLIVE